Why did the government add a public holiday?

The Government committed to add a holiday in February within the first year of its new mandate.

Ontarians work very hard and they deserve more time to spend with the people they love. The addition of Family Day means that Ontarians who are covered by the Employment Standards Act, 2000 (ESA) holiday provisions are entitled to a minimum of nine public holidays with public holiday pay.

What will be the benefits to employees to have this extra public holiday?

Generally speaking, most employees will get a day off with pay enabling them to spend time with their family and loved ones. It will also give employees a day off between New Year’s Day and Easter, which is a long period of time in which people need a rest.

Is an employee who receives more than nine paid public holidays a year entitled to take Family Day off with holiday pay?

Ontarians who are covered by the ESA holiday provisions are entitled to a minimum of nine public holidays. If your employer provides 10 or more paid holidays, you may not automatically be entitled to Family Day. It is best to speak to your employer or union official to determine whether you will have Family Day off.

Now that Family Day has been added, how does Ontario compare to other jurisdictions regarding the number of public holidays per year?

Who will be eligible to take off Family Day?

Most employees will be eligible to take off Family Day. Generally if a public holiday falls on a day that would ordinarily be a working day, and the employee is not on vacation, he or she is entitled to the day off work and to be paid public holiday pay. However, the employee would not be entitled if he or she failed, without reasonable cause, to work all of his or her last regularly scheduled day of work before Family Day or all or his or her first regularly scheduled day of work after Family Day.

Qualified employees can be full-time, part-time, permanent or on a limited-term contract. They can also be students. It does not matter how recently they were hired, or how many days they worked before the public holiday (although that can affect the amount of their public holiday pay).

Will all Ontario workers be eligible to take off Family Day?

Most Ontario employees will be eligible to take off Family Day.

However, there are three categories of employees who may not have the right to the day off. These include employees who:

Are not covered by Ontario’s Employment Standards Act, 2000 (ESA) such as employees who work in federally-regulated workplaces such as banks, telecommunications companies, railways and airlines or who are federal civil servants.

Are covered by the ESA, but fall within a special rule or exemption involving the ESA’s public holiday provisions.

Special Rule

Employees who are employed in a hospital, hotel, motel, tourist resort, restaurant, tavern or "continuous operation" may be required to work on Family Day if it falls on a day that is ordinarily a working day for them and they are not on vacation. In that case, the employer must either pay the employee his or her regular wages for the day and provide a substitute day off with pay, or pay the employee public holiday pay for the day plus premium pay (one and a half times his or her regular rate) for each hour worked on the day. A continuous operation is one that normally operates 24 hours a day and shuts down no more than once in each seven-day period.

Exemptions

Employees in certain occupations and industries are exempt from the public holiday provisions of the ESA. They are not entitled to take Family Day off, and if their employer required them to work on Family Day, they would not be entitled to public holiday pay. These employees include:

Seasonal workers (employees who work for an employer no more than 16 weeks in a calendar year) in a hotel, motel, tourist resort, restaurant or tavern who are provided with room and board

Those whose collective agreement or employment contract is more generous to them in relation to public holidays than the public holiday provisions in the ESA.

For example, if someone has an employment contract that provides them with 10 paid holidays a year, they would be receiving more than the ESA’s minimum requirement. This could be found to provide the employee with a greater right or benefit than the ESA’s holiday provisions (assuming that other aspects of the contract’s holiday provisions are at least as favourable to employees as the ESA holiday provisions). In this case, the holiday provisions of the employment contract would apply instead of those in the ESA.

Many non-union employees do not have written employment contracts. In such a case, it would have to be determined what the employee’s contractual entitlement for holidays was. In this regard, the employer’s past practice would likely be relevant. So, if an employer has a practice of giving staff more than nine paid holidays, and continues to adhere to that practice and the practice is in other respects at least as favourable to employees as the ESA holiday provisions, the employer would likely be found to be providing a greater right or benefit for holidays than the ESA provides. That employer would not be required to provide employees with Family Day off work, but would certainly be free to do so.

What will happen if an employer refuses to give an employee Family Day off?

Family Day is a public holiday under the Employment Standards Act, 2000 (ESA). If an employee thinks the employer is not complying with the ESA, he or she can call the Ministry of Labour’s Employment Standards Information Centre at 416-326-7160 or toll free at 1-800-531-5551 for more information about the ESA and how to file a complaint. Complaints from non-union employees are investigated by an employment standards officer who can, if necessary, make orders against an employer, including an order to comply with the ESA. Unionized employees generally must use the grievance procedure under their collective agreement.

What penalties could an employer face if s/he refuses to give an employee Family Day off?

The Ministry of Labour has a number of options to enforce the ESA, including requesting voluntary compliance, issuing an order to pay wages, an order to reinstate and/or compensate, a notice of contravention, or issuing a ticket or otherwise prosecuting the employer under the Provincial Offences Act (POA).

In the case of prosecutions that are commenced through the issuance of a ticket, the set fine on conviction is $295.

In the case of prosecutions other than those commenced with a ticket, the maximum penalty, if an individual is convicted, is $50,000 or imprisonment for a term of not more than 12 months or both. If a corporation is convicted, the maximum fine is $100,000 for a first offence, $250,000 if the corporation has one previous conviction and $500,000 if the corporation has more than one previous conviction.

What will happen to unionized employees who are covered by collective agreements if their agreements do not include a provision for Family Day when the holiday takes place next February?

Unionized employees would be entitled to take Family Day off with holiday pay unless their collective agreement is more beneficial to them in relation to holidays than the ESA holiday provisions. In that case, the collective agreement holiday provisions, rather than the ESA holiday provisions, would apply.

For example, a collective agreement that does not recognize Family Day but that gives ten other holidays (assuming other aspects of the contract’s holiday provisions are at least as favourable to employees as ESA holiday provisions) might be found to provide a greater benefit in relation to holidays than the ESA. In that case, the agreement's holiday provisions would apply rather than the ESA holiday provisions, so the employees would not be entitled to the Family Day holiday.

Does Family Day apply to federal employees?

Family Day was made a public holiday under the provincial Employment Standards Act, 2000 (ESA), and a holiday under the provincial Retail Business Holidays Act (RBHA). Provincial law does not apply to employees of federally-regulated businesses like banks, telecommunications companies, railways and airlines nor to federal civil servants.

Will workers employed by the federal government get Family Day off?

Family Day is a public holiday for the majority of employees under Ontario jurisdiction. Federal government employees fall under federal jurisdiction. Accordingly, their public holidays are not governed by Ontario’s Employment Standards Act, 2000.

Federally-regulated employees with questions about Family Day should speak with their employer or union official.

The public holiday provisions in the ESA are a minimum requirement only. In some cases, an employee's employment contract or collective agreement might provide for other holidays, such as Civic Holiday, Easter Monday or Remembrance Day. However, these days are not public holidays under the ESA.

Disclaimer: This resource has been prepared to help employees and employers understand some of the minimum rights and obligations established under the Employment Standards Act, 2000 (ESA) and regulations. It is not legal advice. It is not intended to replace the ESA or regulations and reference should always be made to the official version of the legislation. Although we endeavor to ensure that the information in this resource is as current and accurate as possible, errors do occasionally occur. The ESA provides minimum standards only. Some employees may have greater rights under an employment contract, collective agreement, the common law or other legislation. Employers and employees may wish to obtain legal advice.